…and a small voice in me wept for justice

“A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion”

dbfamilylaw

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of…

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